IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41095
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO NIETO ZEPEDA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-00-CR-121-1
May 16, 2002
Before POLITZ, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Armando Nieto Zepeda appeals his conviction and sentence for possession with
intent to distribute more than 100 kilograms of marijuana in violation of 21 U.S.C. §§
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
set forth in 5TH CIR. R. 47.5.4.
841(a)(1), (b)(1)(B) and 18 U.S.C. § 2. He asserts that he was entrapped as a matter
of law and that the district court erred at sentencing because it did not realize that it had
the authority to depart from the guidelines based upon his incomplete entrapment
defense.
At trial, Nieto presented an entrapment defense but it was rejected by the jury.
We therefore review his claim that the defense should have been allowed for
sufficiency of the evidence.1 We will only reverse “if no rational jury could have found
beyond a reasonable doubt either (1) lack of government inducement or (2)
predisposition to commit the charged crime.”2 Our careful review of the record reveals
that Nieto was predisposed to commit the crime in question.3 Accordingly, he was not
entrapped as a matter of law and we affirm his conviction.
Nieto also contents that the district court misconstrued his motion for downward
departure and did not realize that it had the authority to depart based on his incomplete
entrapment defense. While the government concedes that the district court
misconstrued Nieto’s motion, this confusion was caused by defense counsel who then
1
United States v. Rodriguez, 43 F.3d 117, 126 (5th Cir. 1995).
2
United States v. Reyes, 239 F.3d 722, 739 (5th Cir. 2001), cert. denied, 533
U.S. 961 (2001), and 122 S.Ct. 156 (2001).
3
United States v. Chavez, 119 F.3d 342, 346 (5th Cir. 1997).
2
failed to either clarify his request or object to the district court’s ruling. We therefore
review Nieto’s claim for plain error.4 Nieto has failed to demonstrate that his
substantial rights have been affected by the district court’s error and has, therefore,
failed to show plain error.5
Accordingly, the judgment and sentence of the district court are AFFIRMED.
4
United States v. Anderson, 174 F.3d 515, 525 (5th Cir. 1999).
5
United States v. Calverly, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc).
3